N.H. Supreme Court puts off ruling in voter registration case

Wednesday

Oct 10, 2012 at 3:15 AMOct 10, 2012 at 8:34 AM

CONCORD — The New Hampshire Supreme Court has declined a request from the state to get involved in a legal battle over voter registration forms, saying it will reserve judgment on the matter until after the upcoming election.

By Jim Haddadinjhaddadin@fosters.com

CONCORD — The New Hampshire Supreme Court has declined a request from the state to get involved in a legal battle over voter registration forms, saying it will reserve judgment on the matter until after the upcoming election.

At issue is a law requiring new voters to sign a statement saying they are subject to all residency laws when they register to vote in New Hampshire. That includes laws compelling them to get a driver's license and register their cars in the state.

Strafford County Judge John Lewis blocked implementation of the law last month, saying it could confuse out-of-state college students seeking to vote in New Hampshire. Lewis sided with plaintiffs who filed a lawsuit against the state, including the League of Women Voters of New Hampshire.

Lewis granted a preliminary injunction against the voter registration law on Sept. 24, effectively placing the change in voter registration practices on hold as the November election approaches.

The decision stoked the ire of Republican lawmakers in the House, including Speaker Bill O'Brien, who helped to shepherd the new voter registration law to passage earlier this year over Democratic Gov. John Lynch's veto.

O'Brien called Lewis' decision “judicial activism of the worst sort,” and accused the attorney general's office of failing to make the strongest possible case in support of the voter registration law in court.

The attorney general's office is now petitioning Lewis to reverse his ruling and allow the voter registration law to take effect. It has also asked the Supreme Court to hear an appeal of Lewis' decision.

In a split decision Tuesday, the Supreme Court denied the attorney general's request to grant an emergency stay of the lower court's decision — a move that would have allowed the state to continue using the disputed voter registration form.

Voting in the majority were Senior Associate Justice Gary E. Hicks and Associate Justices Carol Ann Conboy and James P. Bassett. They indicated the Supreme Court will wait for the lower court to make a final ruling on the voter registration lawsuit before it takes up the matter. And that isn't likely to happen before the Nov. 6 election.

“Because of the complexities of the issues raised and the imminence of the upcoming election, we think it unrealistic to expect that this case could be concluded in both the superior court and this court prior to the election,” reads the ruling.

“Because a duly enacted statute carries a presumption of constitutionality and because, without reaching the merits, we regard it as an open question whether the petitioners will ultimately prevail, we would grant the state's emergency motion to stay,” reads a dissenting opinion.

In response to the ruling, the League of Women Voters said it was pleased the Supreme Court acted promptly, since new voter registrations have already been printed in response to the superior court injunction.

“The bottom line is that students can register to vote in New Hampshire for this presidential election even if they intend to move away after they graduate — whether that is next spring or five years from now,” LWV of New Hampshire election law specialist Joan Flood Ashwell said in a prepared statement.

Secretary of State Bill Gardner saw less finality in the Supreme Court's decision, which shut down the possibility of emergency intervention by the court, but didn't address the constitutional questions in the case.

“The decision is that there's no decision, right?” Gardner said. “It's unknown at what point there will be one.”

During the last presidential election, 76,755 people registered to vote when they showed up at the polls on Election Day, Gardner said, representing about 12 percent of all voters who cast ballots that year. If a court battle continues over the voter registration forms, Gardner said he fears it will lead to a slow-down at the polls this year.

“This argument is about the process to become a registered voter, and a lot of people — it could be as much as 100,000, are going to be registering that day, filling out that form,” Gardner said, “and what we don't need is misunderstandings of what it means when you fill out that form. And the more questions that people have when they're registering, the longer the lines are going to be, and the more time election officials are going to have to spend answering questions to prospective registrants, and that has the potential to be quite harmful to this process.”

Discussing the court case, Gardner said he's concerned the plaintiffs continue to merge the issue of registering to vote with the act of voting.

“This is what it should be about: Are we denying anyone the opportunity to vote in the election?” he said.

In his original ruling, Lewis ordered the state to stop using the new voter registration form, which was in circulation for about one month, and also ordered the Secretary of state's office to add a statement to its website indicating college students are not required to register their cars in New Hampshire as a consequence of voting.

In a hearing in Strafford County Superior Court last week, Gardner and the attorney general's office argued that Lewis' ruling was overly broad, and that the statement posted to the secretary of state's website was confusing.

Lewis conceded those points Friday and amended the ruling, allowing the secretary of state to remove the statement from the website.

House Speaker Bill O'Brien has asked to become a party to the suit, both in the lower court and in the Supreme Court, speaking as a representative of the House of Representatives. The attorney general's office has asked judges to prevent O'Brien from being accepted as an intervenor.

O'Brien has criticized the attorney general's handling of the voter registration case, and accused the state's lawyers of “turning the Constitution on its head” by seeking to keep the Legislature out of the legal proceedings. O'Brien argues Lewis erred by “not construing SB318 to expand the definition of residency.”

In a new motion filed in Supreme Court on Tuesday, O'Brien once again argued through an attorney that he should have the ability to intervene in the voter registration lawsuit. O'Brien pointed out that the attorney general's office has refused to challenge whether the plaintiffs in the case have standing to challenge the voter registration law.

The lawsuit against the voter registration law was brought by the League of Women Voters of New Hampshire and the state chapter of the American Civil Liberties Union in September. Two University of New Hampshire students and another pair of out-of-state college students are also named as plaintiffs.

“The real dispute in this case is between, on the one hand the General Court and Secretary of State Gardner who seek to have the law interpreted to mean what it says and argue that this plain-meaning interpretation is constitutional, and on the other hand the Petitioners and the Attorney General,” the speaker's motion reads.

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